Marni Soupcoff: What Tuesday’s election can teach us about legally defining marriage

What Tuesday’s election can teach us about legally defining marriage

We all know the big U.S. election news is that Barack Obama won. Second term, a chance to implement Obamacare, no need to pack up the White House any time soon, etc., etc. It’s the main story, certainly, but as far as Tuesday’s winners go, it turns out that same-sex marriage wasn’t far behind the President.

Ballot initiatives to legalize gay marriage passed in three states: Maine, Maryland and Washington. Meanwhile, in Minnesota, voters defeated a ballot initiative to ban gay marriage through an amendment to the state’s constitution. Activists are calling the results a victory for gay and lesbian rights. Indeed the outcomes suggest that, in more and more areas of the United States, a significant chunk of Americans really are ready to at least tolerate government-sanctioned same-sex marriage (with a simple “yes” or “no” vote, it’s hard to tell the difference between a willingness to make something legal and enthusiastic support of the same).

Now, here’s the thing about this contentious issue: A libertarian-leaning person like me looks at it and thinks, forget government giving its blessing to gay marriages. It’d be a better change if government removed itself from marriages of all kinds — be they straight, gay, Big Love-style or otherwise.

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Whether marriage is understood as a public expression of love, or a religious compact, or a financially advantageous union, I can’t see that it’s ever made any better for by having been signed off on by a bunch of bureaucrats. If you’re marrying for love, the only approval you should require is that of family and friends, or whatever social circle matters to you. If you’re marrying for religion, then you need only the sanction of your faith. If you’re in it for pragmatic economic reasons, hire a lawyer and draw up a contract. Why insist on the government certificate?

To be realistic, though, this is not a libertarian-leaning world, mine is not the majority stance, and marriage has become so hopelessly entwined with our regulatory state, tax system, and judicial precedent that government ditching it altogether is highly unlikely.

Which brings us back to Tuesday: If government is staying in the marriage business, then what’s the best way for it to decide which unions qualify? Direct ballot initiatives like the ones we’ve just seen in four U.S. states.

Of course there are other ways to go about it: Before Tuesday, same-sex marriage was already legal in Connecticut, Iowa, Massachusetts, New Hampshire, New York, and Vermont. But in these states, gay marriage became lawful through legislative or judicial decree. For a social issue that raises such strong emotional, religious, spiritual and moral questions — an issue that at its heart asks what society currently means by the concepts of “marriage” and “family” — polling the people themselves makes much more sense. It gives a more accurate picture of the societal mores we’re trying to capture than the picture we get when we filter the results through partisan politicians or an appointed judiciary. And whatever policy ultimately results is more likely to be accepted (even if grudgingly) by the populace.

There’s no way to get around these problems entirely. But the more grass-roots the assent for the legal definition of marriage, the less it will feel like it’s coming from on high as a government endorsement or criticism of any one lifestyle or religion. It will feel more like an expression of where society’s comfort level lies right now on the question. Which — if we must involve government in the process at all — is exactly what the legal definition of marriage should be.